He Said She Said - Abhishek Makam

Trigger Warning: Article deals with child abuse and sexual abuse.

What is a trial judge supposed to do when it is the word of one person against the word of another in a criminal trial and there isn’t any additional evidence to decide the case on? This is exactly what Judge Toews of the Manitoba Court of Queen’s Bench (“the MBQB”) was asked to do at trial in R v Ramos (“Ramos”). The MBQB in Ramos was tasked with assessing the credibility of the testimonies using the analysis from R v W(D) (“W(D)”) in order to make a verdict. Judge Toews of the MBQB sided against Mr. Ramos, in favor of the complainant’s testimony. Mr. Ramos appealed the MBQB’s decision to the Manitoba Court of Appeal (“the MBCA”), inter alia, on the basis that Judge Toews did not properly apply the W(D) framework and did not provide “adequate reasons in his assessment”. The MBCA dismissed the appeal, although its minority opinion would have granted the appeal.

A complainant’s allegations of sexual abuse of a minor

The complainant in Ramos was the daughter of the accused’s girlfriend and she alleged that, when she was alone with the accused, the accused had “repeatedly sexually touched her over a three-year period . . . from 2010 until 2013”.

Prior to the mother and daughter leaving for vacation to Colombia in October 2013, the accused in Ramos had told the daughter that he was going to break up with the mother. It was during this vacation that the complainant first told her mother about the sexual abuse. They had immediately notified the police upon their return to Canada, and the complainant submitted a video statement in November 2013. She was ten years old at this point.

Over two years later, the complainant revealed additional details and submitted a second video statement alleging that the accused had shown her child porn on his laptop; he had bribed her with gifts of candy and hamsters to keep her silent, and he “encouraged sexual touching between her and her brother”. With respect to the evidence about the brother, she had originally stated that the brother “touched her vagina . . . but she later changed her evidence to him not having touched her vagina.”

Mr. Ramos denied everything. He admitted to owning a laptop but denied harboring any child porn on it. However, Mr. Ramos conceded that although “he did not ‘recall’ ever being alone with the complainant . . . it was ‘possible’ there may have been a time when he and the complainant were together”.

the W(D) framework

The goal of the W(D) framework is to ensure that “reasonable doubt remains the central consideration” when the evidence of the accused and the complainant are at odds. There are three principles to the framework:

• if the trier of fact believes the accused’s denial, then you must acquit;

• even if the accused fails to establish credibility, if there still persists reasonable doubt based on the totality of the evidence, then you must acquit; and

• if the complainant’s evidence convinces the trier of fact beyond a reasonable doubt, then you must convict.

In order to ensure that the trial judge doesn’t simply choose “one version of events over another” and to ensure “transparency and accountability for the proper administration of justice”, the trial judge has to give adequate reasons for their decision. For the reasons to be adequate, there needs to be a logical connection between the decision and the basis in the evidence for reaching that decision.

Guilt beyond a reasonable doubt at trial

The MBQB in Ramos found the complainant to be “a polite, honest, intelligent but relatively unsophisticated child without any motivation to lie”. With respect to incremental/delayed disclosure and any other inconsistencies in the complainant’s evidence, “he attributed them to either the passage of time . . . or involving ‘insignificant peripheral matters’”. By contrast, the MBQB “disbelieved the accused’s bare denials”, who “sought to establish that there was simply no opportunity for this many . . . incidents of sexual activity [but] there were more than enough opportunities for [them] to have been alone”. The MBQB used this fact as evidence to discredit the accused. Based on the totality of the evidence, the trial judge “was satisfied beyond a reasonable doubt” to convict Mr. Ramos.

Appeal upholds trial’s sparse reasons

The accused appealed the MBQB’s decision to the Manitoba Court of Appeal (“the MBCA”). Based on a finding that the MBQB didn’t provide adequate reasons, the MBCA outlined the following principles:

• the appeals judge should read “the trial judge’s reasons . . . ‘as a whole, in the context of the evidence,’” instead of cherry-picking the reasons;

• if the “trial judge’s conclusion is apparent from the record”, then the reasons do not need to be articulated by the trial judge;

• the appeals judge simply “cannot substitute its own view of the evidence” with that of the trial judge;

• “the impact of the incremental disclosure will depend on the circumstances”; and

• the trial judge’s findings of credibility will be given deference, since they had the privilege of observing the testimony in person.

Under the circumstances in Ramos, considering the age of the complainant, the MBCA didn’t find that the more than two-year delay in disclosure required additional reasons from the MBQB. Furthermore, the MBCA agreed with the MBQB that the complainant’s inconsistent testimony regarding the brother did “not ‘detract’ from her credibility”; the central issue in Ramos was whether Mr. Ramos sexually abused her or not and thus the testimony with respect to the brother was ancillary to the core issue. Additionally, “section 276(1) of the [Criminal Code forbids the use of a victim’s sexual history] to support an inference” regarding the victim’s credibility. As a result, the MBCA held that the MBQB had provided adequate reasons.

The dissent would have held a higher standard

However, the dissenting opinion from the MBCA in Ramos disagreed, maintaining a higher standard for adequate reasons in their analysis. According to the dissent, reasons are inadequate if they are “not conclusory”. In Ramos, the MBQB stated that the complainant’s “testimony was consistent and clear”, and used that as a reason to make a conclusion about the evidence. However, the dissent argued that the finding that the complainant’s “testimony was consistent and clear” is in itself a conclusion. What was missing in the reasons is that the trial judge does not specify exactly “what was it in the evidence that satisfied the trial judge” to make these conclusions.

Furthermore, the dissent in Ramos argued that the more than two-year delay in disclosure and the content of this delayed disclosure were not insignificant nor peripheral. These additional disclosures about “bribery, . . . touching of her brother, [and] pornography” were “core elements of the offences”. As a result, the MBQB should have provided reasons as to why the delayed disclosure and these inconsistencies do not raise reasonable doubt.

Lastly, the dissent in Ramos pointed out that the MBQB misapprehended the evidence when the trial judge discredited the accused for seeking to “establish that there was simply no opportunity for this many . . . incidents . . . to have taken place” between the two of them. The trial judge misinterpreted this to mean that the accused’s defense was that he couldn’t have committed the offense due to a lack of opportunity. Instead, the accused was in fact only arguing that he didn’t do it, not that he couldn’t have done it. The accused never denied that he had the opportunity. So, it was incorrect for the trial judge to use this as a reason to discredit the accused.

Consequently, the dissent would have allowed the appeal and ordered a new trial.

Split opinions on adequate reasons

Whenever there is a decision made solely or largely on the basis of credibility of testimony alone, there is a particular risk of wrongful judgments due to the lack of any additional corroborating evidence: exculpatory or inculpatory. This is because there is always a possibility that the complainant is simply fabricating the testimony or that the complainant could simply be mistaken. If the judge finds the complainant credible enough, then the onus unjustly shifts to the accused and forces them to produce credible testimony of their own in hope of creating reasonable doubt. However, focusing entirely on the rights of the accused and demanding a stricter standard of evidence ignores the realities of the victims. Sometimes there is no other evidence that a victim could produce other than their testimony.

If a complainant’s testimony is always discarded simply on the basis that there is always a possibility of fabrication, then that is no justice because that would allow a great deal of perpetrators to circumvent the law. By the same token, if we were to accept every single allegation of the complainant as credible, then that would increase the number of innocent individuals who are wrongfully convicted. It is a balancing act, and the question is how many wrongful convictions should be tolerated in order to ensure that the wrongdoers don’t escape or vice versa. Ideally, the justice system should not tolerate even a single wrongful conviction. However, until mind-readers become a fully functional reality, it seems inevitable that an innocent few must be sacrificed to lady justice for the system to run.

Currently, Mr. Ramos has appealed this case to the Supreme Court of Canada (“the Court”). This is a good opportunity for the Court to further delineate and offer additional guidance as to what constitutes adequate reasons for a credibility analysis. Since, there still seems to be a lingering uncertainty about this matter as evidenced by the variety of opinions at the MBCA in Ramos.